Gaskin v. Henry

830 So. 2d 471, 2002 WL 31375591
CourtLouisiana Court of Appeal
DecidedOctober 23, 2002
Docket36,714-CA
StatusPublished
Cited by13 cases

This text of 830 So. 2d 471 (Gaskin v. Henry) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaskin v. Henry, 830 So. 2d 471, 2002 WL 31375591 (La. Ct. App. 2002).

Opinion

830 So.2d 471 (2002)

Melony F. GASKIN, Plaintiff-Appellant,
v.
Timothy K. HENRY, Defendant-Appellee.

No. 36,714-CA.

Court of Appeal of Louisiana, Second Circuit.

October 23, 2002.

*472 George E. Lucas, Jr., Monroe, for Appellant.

*473 Kitchens, Benton, Kitchens and Newell, by: Paul E. Kitchens, Minden, for Appellee.

Before BROWN, GASKINS and CARAWAY, JJ.

BROWN, C.J.

This is a child custody dispute between Melony Fitzgerald Gaskin Pesnell ("Melony"), and Timothy Kyle Henry ("Kyle"), the parents of S.H.H. (d.o.b.03-05-97). Melony and Kyle never married, but lived together until some time in 1999.

On December 28, 1999, Melony filed a petition seeking joint custody of the couple's daughter, with her being designated primary domiciliary parent. Kyle filed an answer and reconventional demand, seeking his designation as primary domiciliary parent based upon his allegation that Melony was living in a state of open concubinage. On March 9, 2000, the parties entered into a stipulation resolving the issues of custody and child support. A judgment in accordance with the parties' agreement was filed on April 11, 2000.

On July 14, 2000, Melony filed a Petition for Domestic Abuse Protection, alleging that some improper sexual activity had taken place between Kyle and the child, who at the time was not quite 3½ years old. In support of her petition, Melony attached an affidavit executed by Dr. Bobby Stephenson, in which he opined that further inquiry into the allegations of sexual abuse was warranted and that supervised visitation should be implemented until such time as an investigation could be undertaken.[1]

Kyle filed a reconventional demand denying Melony's allegations and seeking primary custody of the child, again urging his objection to Melony's cohabitation with a man to whom she was not married. On August 7, 2000, an interim order was rendered appointing Dr. George Seiden and Dr. Susan Vigen, mental health professionals, to evaluate the child and restricting Kyle to supervised visitation.[2]

Trial was held on January 29 and 31, 2001. Oral reasons were rendered on January 31st and a written judgment was filed on March 6, 2001. In this judgment, the trial court found that there was insufficient evidence to conclude with any epistemological certainty that Kyle had exposed the child to sexually inappropriate behavior, but, considering that as a possibility, ordered that: supervised visitation be continued; the parties attend a "Children in the Middle" workshop; the parties and the child attend counseling; and there was to be no unsupervised contact between any male and the child until authorized or approved by a licensed mental health professional.[3]*474 The trial court set a review hearing for May 10, 2001.

At the May 10, 2001, review hearing, the trial court ordered Dr. E.H. Baker to evaluate Melony, Kyle and the child and to submit a written report to the court. The court further advised both attorneys to set a date for a review hearing following the court's receipt of Dr. Baker's report.

On November 13, 2001, George E. Lucas, Jr., enrolled as counsel for Melony. A telephone status conference was held on the afternoon of Tuesday, December 11, 2001. Counsel for both parties discussed the various issues, including the need for the setting of a date for a review hearing. The judge consulted with her secretary and determined that February 4, 2002, was available on her court calendar. According to Kyle's attorney, Paul Kitchens, the parties and the trial court agreed that the matter would be set for February 4, 2002. According to Melony's counsel, however, this date was never "formally" set on the court calendar by the filing of a motion and issuance of an order. Therefore, neither Melony nor her attorney appeared on that date. Kyle and his attorney, however, were present and the review hearing was held as scheduled.

A detailed judgment was rendered on February 4, 2002, which adopted the recommendations set forth in the written report of Dr. Baker which allowed for a graduated increase in Kyle's visitation with the child and ultimately provided for unsupervised visitation.[4] It is from this judgment that Melony has appealed.

Discussion

Melony's first assignment of error is that the trial court erred in conducting a review hearing on February 4, 2002, because it was neither formally placed on the docket nor was a written notice issued to counsel. Melony asks this court to reverse the trial court's February 4, 2002, judgment.

On the other hand, Kyle contends that counsel for appellant participated in the telephone conference during which the date was set for the review hearing and offered no objection to the court's setting the review hearing for February 4, 2002. Therefore, Melony and her attorney had actual notice of the hearing date and can not complain that the review hearing was held as scheduled.

In Benware v. Means, 99-1410 (La.01/19/00), 752 So.2d 841, on remand, 93-0203 (La.App. 1st Cir.05/12/00), 760 So.2d 641, writ denied, 00-2215 (La.10/27/00), 772 So.2d 650, a legal malpractice action arising out of workers' compensation proceedings, one of the issues addressed by the supreme court was appellant-attorney's complaint that he did not receive a formal notice of trial from the clerk of court. The supreme court noted that the local rules cited by appellant did not require formal notice of trial, but merely prescribed the usual procedure for obtaining a trial date. The paramount concern was that there be some form of notice of trial, which is of course a due process requirement.

*475 In Benware, supra, as in the instant case, there was no written notice of trial issued by the clerk of court's office. Nonetheless, as in the present case, the date for trial was mutually set by the other parties' attorneys and the trial judge. Unlike this case, however, appellant, who was representing himself, was not present at the status conference during which the trial date was set. Instead, he was informed of the trial date by opposing counsel.

The supreme court noted that the normal procedure for fixing a date for a trial or hearing was for a party to file a motion and the judge to select and fix the date. In that situation, formal notice of a trial date (not agreed upon by the attorneys) is clearly necessary. However, less formality is required when the parties themselves select a trial date, at least in the absence of prejudice to any party. Benware, supra at 849.

In this case, there is clearly no prejudice to Melony's attorney, who participated in the pre-trial conference during which the February 4, 2002, date was set. Inasmuch as he had actual notice that the review hearing had been set for that date, Melony's counsel can hardly complain that he was unaware that the matter was set for hearing on that date simply because he did not receive a written notification. While we appreciate his argument regarding his reason for not filing a motion/order to set a date for the review hearing (his client didn't like what Dr. Baker's report recommended and didn't want to have a review hearing because his client didn't want the child's father to have increased visitation with the child), we cannot discount the fact that both the trial court and Kyle's attorney came away from the pre-trial conference knowing that February 4, 2002, had been set for a review hearing.

At the beginning of the hearing on February 4, 2002, the trial judge stated the following:

Mr. Lucas ...

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Cite This Page — Counsel Stack

Bluebook (online)
830 So. 2d 471, 2002 WL 31375591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaskin-v-henry-lactapp-2002.